Rural Law

Followers of land reform in Scotland will be aware that the implementation of the Land Reform (Scotland) Act 2016 is an ongoing process.

Part 4 of the 2016 Act placed an obligation on the Scottish Ministers to produce “guidance about engaging communities in decisions relating to land which may affect communities”.  The Scottish Government has now published that guidance, following on from a consultation last year.

Note that the guidance does not replace statutory obligations of consultation and engagement where these exist.

What does it set out to do?

The guidance aims to encourage good practice by landowners when making decisions that will impact the community and therefore is particularly relevant to owners of land near urban areas whose decisions may have a greater impact on the local community.

It does not set out prescriptive rules as to how and when engagement should be conducted but rather provides examples and overall principles to assist landowners. It is suggested that when in doubt landowners should seek assistance from the relevant community council or other local body.

To whom does the guidance apply?

The guidance applies to all those who have ‘control’ over land, both urban and rural, and includes charities, trusts, NGOs, community owners and tenants. It should be noted that the party with “control” over an area of land may not always be the legal owner of that land.

When should I engage?

The guidance states engagement should be undertaken ‘when making a decision relating to land that will have a significant impact on the local community’. What constitutes a ‘significant impact’ is not precisely defined and will usually depend on local circumstances. Generally speaking, a significant impact is one that affects the local population as opposed to an individual.

For example, a decision which results in the loss of one job in the local area is not likely to constitute a significant impact, whereas one that leads to the loss of many jobs in the local area probably would constitute a significant impact. A series of small decisions can suffice to create a significant impact. The guidance includes helpful examples of decisions that may or may not create a significant impact.

How should I engage?

Engagement can be formal or informal depending on the nature of the decision, scale of impact, the number of people and size of land involved. The guidance contains a useful summary  and emphasises that engagement should involve as much of the community as possible.  Any relevant meetings should be publicly accessible and well-advertised. As a general rule effective community engagement should be proportionate, collaborative and ongoing.

Overall, the guidance seeks to benefit both landowners and local communities by improving their relations and seeking mutual benefit. It emphasises common sense and gives landowners a wide discretion as to how to conduct engagement to take account of local practices and circumstances.

Landowners are not required to do exactly what the community wishes, only to listen to their views and take them into account when making decisions.

Lorna McKay

Lorna McKay

Associate at Brodies LLP
Lorna is an Associate in Brodies’ land and rural business team. Lorna is experienced in a range of rural property matters including the purchase and sale of farms, estates and woodland, agricultural
holdings, fishings and trust and executry conveyancing. 
Lorna McKay